The Supreme Court of Vienna

acting as a court of appeal,
represented by the President of the Senate, Hon.-Prof. Dr. H. as Chairman, along with Councillor Hon.-Prof. Dr. B., Councillors Dr. W. and Dr. K., and Councillor Dr. S. as additional judges in the legal matter of the plaintiff party xxx Germany, represented by xxx, against the defendant party UniCredit Bank Austria AG, 6020 Innsbruck, Maria-Theresien-Straße 36, represented by xxx, concerning xxxx EUR over the extraordinary appeal of the plaintiff party against the judgment of the Innsbruck Court of Appeal as the court of second instance dated xxx,
has decided:
The extraordinary appeal is dismissed pursuant to § 508a para. 2 of the Code of Civil Procedure (ZPO) due to the lack of conditions required by § 502 para. 1 ZPO.

Justification

A violation of the principle of immediacy by the court of appeal occurs if it departs from the findings of the first-instance court without repeating the evidence or due to an incomplete repetition of the evidence related to the subject matter of the evidence, upon which the first-instance court based its decisive findings, or if it supplements findings without repeating evidence based on the evidence taken in the first instance (RS0043057). Contrary to the plaintiff’s assertion, this is not the case when the court of appeal— as in this case— adopts the contested findings of the first-instance court and provides additional arguments within the framework of handling the evidence objection to support the correctness of the findings.

The ground for appeal based on a misrepresentation of the records exists only if the content of the records is incorrectly presented in a significant point, but not if the court arrives at findings or legal conclusions in a certain direction based on correctly presented evidence results (RS0043324). The complete (“full content”) adoption of the findings of the first-instance court by the court of appeal cannot, by definition, be a misrepresentation of the records (cf. 7 Ob 16/03h RS0043203 [T15]). Therefore, the adoption of the contested first-instance findings by the court of appeal— even with additional arguments— cannot substantiate the alleged misrepresentation of the records.

According to established jurisprudence, a deficiency in the first-instance proceedings, which was asserted in the appeal but was denied by the court of second instance, can no longer be successfully challenged in the revision proceedings (RS0042963 [T45]), unless the court of appeal did not address the deficiency objection of the appellant at all or not on the basis of the records (RS0042963 [T12]). This is not the case here.

The question of the admissibility of prima facie evidence raised in the legal complaint does not arise because the court of appeal already denied a breach of duty by the defendant regarding the alleged loss of the jewelry. For this reason alone, the plaintiff’s claim for damages is excluded without the need to clarify the contents of the safe deposit box.

Supreme Court of Vienna, on xxx
Dr. H.

Electronic copy according to § 79 GOG